Healy and Twine

[2016] FCCA 2565

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEALY & TWINE [2016] FCCA 2565

Catchwords:
FAMILY LAW – Family violence – final consent orders made in 2014 – refusal by mother to comply with orders – family violence determined as a preliminary issue.

Legislation:

Family Law Act 1975, ss.4AB, 11F, 60B(1), 60B(2), 60CA, 60CC, 64, 65D, 69ZR

Applicant: MR HEALY

Respondent: MS TWINE

File Number: MLC 3592 of 2013

Judgment of: Judge Harland

Hearing date: 8 August 2016

Date of Last Submission 8 August 2016

Delivered at: Dandenong

Delivered on: 6 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Burns

Solicitors for the Applicant:

The Respondent:

G A Black & Co

In person

Counsel for the Independent Children’s Lawyer:

Ms Boymal

Solicitors for the Independent Children’s Lawyer: Trapski Family Law

ORDERS

1. Pursuant to s.62G(2) of the Family Law Act 1975, the mother and the children X born (omitted) 2004 and Y born (omitted) 2007 attend upon Ms S at her office at (omitted) on 18 January 2017 at 10.00am for the preparation of the remainder of the family report.

2. The updated family report deal with the following matters:

   (a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;

   (b)any other matters that the family consultant considers important to the welfare or best interests of the children.

3. The mother comply with all reasonable directions as to attendance upon Ms S as and when required by the consultant.

4. The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.

5. It is directed that the Independent Children’s Lawyer provide Ms S with a copy of these reasons, updated affidavits and other relevant material prior to her appointment with the mother and child.

6. Unless a party objects, in writing, within 14 days of the date of releasing the family report, the court may provide copies of the family report to the following, if the court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

   (a)a children’s court;

   (b)a child protection authority;

   (c)a state or territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

7. The Independent Children’s Lawyer is directed to issue a subpoena to the Department of Education and Training Victoria and is further directed to copy the documents produced and make them available to Ms S prior to the further family report interview with the mother and the children.

8. Unless otherwise ordered, no person release the family report, or provide access to the family report, to any other person.

9. The proceeding is adjourned to Directions on 23 February 2017 at 9.30am

AND THE COURT NOTES THAT:

1. At the date on which a copy of the family report is provided to any of those identified above, it may not have been admitted into evidence and may be untested and if admitted would only form one part of the evidence in the proceedings.

2. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

3. In the event a party to these proceedings objects to the release of the family report pursuant to order 8 herein, he or she shall write to the chambers of Judge Harland seeking that the matter be listed on short notice for his or her objection to be heard.

IT IS NOTED that publication of this judgment under the pseudonym Healy & Twine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3592 of 2013

MR HEALY

Applicant

And

MS TWINE

Respondent

REASONS FOR JUDGMENT

1. This case has a long history before the Court however the parties’ evidence has not been tested before now. The mother has refused to comply with multiple court orders, including orders she has consented to on more than one occasion. On 25 July 2016 I determined that the hearing dates allocated on 8 and 9 August 2016 would be used to determine the issue of family violence as a preliminary issue pursuant to s.69ZR of the Family Law Act1975 (Cth) (“Family Law Act”). Given the history of this case it was the best way to progress the matter in a substantive way. I arranged for the father and his counsel to be in a separate courtroom on a different level.

2. The two children X born (omitted) 2004 aged 12 and Y born (omitted) 2007 aged 9.

3. The mother also has a child from a previous relationship A born (omitted) 1991, aged 24.

History of proceedings

1. The father commenced first round of proceedings on 7 May 2013. He sought interim and final orders for him to spend alternate weekends with the children and time on other occasions. He also sought an order that the children be enrolled and attend the local primary school.

2. The mother was legally represented and filed a response seeking sole parental responsibility for the children. Final orders were made by consent on 5 November 2014. The mother did not have legal representation when she consented to the orders. There was no Independent Children’s Lawyer (“ICL”) at that time. The parties did have the family report.

3. The consent orders provided the children to live with the mother and for the parents to have equal shared parental responsibility. The orders required the parties to enrol with Family Life (omitted) for there to be supervision for a period of four months for two hours a fortnight. After that period the father was to have unsupervised time for four months for two hours a fortnight. After the completion of that period the father was to have alternate weekends from 5.00pm Fridays until 5.00pm Sundays as well as time during school holidays.

4. On 19 December 2014, the father filed contravention application. On the 17 March 2015 the mother was found to have contravened the orders without reasonable excuse failing to enrol with Family Life. An ICL was appointed for the children.

5. On 9 April 2015 orders were made requiring the mother to file and serve an application in a case with respect to any change of circumstances. She was also ordered to comply with the previous orders enrol and take the children to Family Life (omitted).

6. The mother filed an application in a case seeking sole custody of the children. In her supporting affidavit she talked about feeling that she betrayed the children and her by consenting to the final 2014 orders.  She talks about the father having long standing problems dating back to his childhood. She says that being under his control again and being exposed to him “would be highly detrimental. Not only to our health but to our mental stability.”

7. Further on within that same affidavit she says: “I broke the cycle. Let us keep our pride! Stop this man dragging my children and myself through the gutters. Allow us to keep our freedom to be ourselves.”

8. On 22 May 2015 the father’s contravention was withdrawn with a right of reinstatement. A section 11F memorandum was ordered and the father was also ordered to undergo random supervised drug screens.

9. On the 30 May 2015 the case was listed for final hearing and a family report ordered.

10. The father filed a further contravention application on 2 June 2015 alleging the mother had failed to comply with the order to enrol with Family Life (omitted).

11. On 28 July 2015 the section 11F memorandum was released. Consent orders were made requiring the father to attend a men’s behavioural change course, the father to continue to see Ms K for counselling and for the father to see the children for two hours a week supervised by Ms D.

12. On 21 March 2016 father filed a further contravention application with respect to the allegations that the will of the mother failed to make children available. That application was returnable on 25 July 2016. The ICL requested that the case be listed for mention at the same time as the mother refused to attend the family report interviews and refused to make the children available for the interviews.  Ms S the family report writer recorded in her report that the mother told her that she would not be participating in the proceedings any further. However the mother did attend court on 25 July 2016.

The mother’s position

1. The strongly held position is that father is a violent liar. She will never trust him. She cannot see a future where he has any involvement with the children.

2. The father has filed contravention applications previously and currently has contravention application on foot. The mother was quite candid during the course of the hearing that she has not complied with court orders and has no intention of complying with orders which would bring the children into contact with the father.

3. One of the most recent orders that the mother did not comply with was the order for the mother and the children to attend upon a regulation 7 family report writer Ms S for an updated family report. Mr Twine did not attend the appointment but spoke to Ms S by telephone. She did not make the children available. She conceded that she did not raise her concerns with Ms S about the children coming into contact with the father.

4. The mother’s actions in doing so has deprived the Court of any recent evidence as to the children’s views and feelings about their father and their emotional and psychological well-being. The mother is highly critical of the previous family report writer, the family consultant who prepared a section 11F Child Inclusive Memorandum and the Court process generally. She seems to interpret the proceedings as being an affront to her and an intrusion on her privacy. She showed limited insight and at times was incredibly angry and agitated.

5. The proceedings are not as simple as the mother would have it. It is not simply a matter of making a finding about family violence and therefore denying the children any relationship with their father. That is not to suggest that family violence is not a very serious matter that weighs heavily in the court’s assessment as to what is in the children’s best interests and whether or not orders for the children to spend time with their father would place them at an unacceptable risk. It also must be said that the father was entitled to commence Court proceedings. He is also entitled to seek enforcement of court orders.

The father’s position

1. The father raises concerns about the children’s welfare, particularly with respect to the children’s education. The children are homeschooled by the mother and only registered with the at the ICL’s insistence. It is also apparent that the mother is highly defensive about homeschooling children and that others are biased against homeschooling.  The mother struck me as being rigid in her views and isolated.  The mother says that the Department of Education does not make any checks and does not need to. This causes the Court some concern as it seems likely that the checks are to ensure that the children who are homeschooled are receiving the standard of education provided by government schools. It is quite clear that the mother remains deeply affected by the violence she experienced. She has not sought any counselling or other professional assistance and was not aware of any support systems she may have in place. Ms S raised concerns about the mother’s approach to home schooling in her 2013 report. Again whilst her report is untested it does raise concerns that remain in issue.

The experts

1. Ms S prepared a family report in the 2013 proceedings. The mother is extremely unhappy with that report. That report was untested because the parties resolved those proceedings by consent. One pertinent observation of the mother was made at [24]:

   Ms Twine presented in a defensive manner. She was annoyed at the discussion about the interviews and the intrusion of the Family Law Act upon her life are suggesting that she could make her own decisions in regard to the children.

2. That observation remains true of the mother today.

3. In the s11F memorandum Ms L states under the heading ‘Coparenting Relationship’ the following:

   Ms Twine’s behaviour at interview, in the waiting room and in the childcare room was most concerning. She exposes the children to her anxiety about court (by challenging the writer regarding childcare protocol) and her rigid opposition to the father’s involvement in with them, as if they are an extension of herself. Understandably, she holds onto negative feelings about Mr Healy due to the episodes of family violence and the associated alcohol and marijuana abuse prior to separation but it is most concerning that she is unable or unwilling to conceive of the children having a relationship with him after receiving feedback from the writer about their missing him.

4. She also records interviews with the children where whilst recalling the father’s violence they also expressed some desire to reconnect with their father although they were both anxious about how their mother would cope.

5. Ms L expressed concern about the mother’s rigidity and inability to accept feedback about the children. She said that the mother was “unable to integrate the children’s feedback as her own resistance is so entrenched.” She recommended that the mother attend for individual counselling or group education to become more child-focused. She expressed concern that the mother would continue to align the children.

6. Ms L also refers to the father’s “keenness to impress that he has sought various forms of help.”  That is certainly true that the father has attended various courses and had counselling.

7. Ms S prepared a family report which is incomplete because of the mother’s refusal to attend with the children.

8. The father told Ms S that he was seeking orders that the children live with him because the mother has refused to obey court orders for three years and it is the only way he will be able to see them. He says if the children live with him he will send them to school and the children would see both parents. The father’s position is that if the mother lets him see the children he will not pursue the children living with him.

9. Ms S spoke to the mother by telephone. She records the mother expressing views that the proceedings are intrusive and there is no benefit to children in seeing their father.

The father’s evidence

1. The father was in a car accident. His memory, mood and behaviour were affected, particularly for the first two years. His memory of his life before the accident was not affected. He says it has been getting milder and milder as time progresses but he does not think he will get his memory of the first two years after the accident back. The accident took place approximately 10 years ago.

2. The father filed an affidavit on 1 August 2016 addressing the mother’s allegations about family violence. He admits that on the night of the parties’ separation the mother argued and then he struck her on her head. The father says that the “the mother neglects to provide any context to her description of the event of 4 and 5 January 2012” and he proceeds to give what he describes as the context. He was in a car accident in January 2006 and sustained a brain injury which he says leaves him having difficulty with his responses when he is under intense emotional pressure. He says before January 2012 he and the mother were arguing about the children being home schooled. He says they had previously agreed that X would attend a mainstream school from 2012 onwards but the mother refused to enrol him. The father drank most of the bottle of port that night and at 2.00am he wanted to talk to the mother about the school issue. They argued. The mother said she would wake the children and leave the house with them. He says he didn’t think it was in the children’s best interests to be away he then says:

   [T]he mother tried to push past me to raise the children, and in an attempt to protect them from her disruption I hit the mother. I admit that I was not thinking straight during this episode at all, and deeply regret ever hitting the mother.

3. He denies the mother’s version of events where she says he karate kicked her in the face in front of the children. He admits swearing and abusing the mother. In his affidavit the father said that he thought the mother described him as karate kicking her because the police referred to this in their records. The police records are exhibit B. With respect to the incident leading to the parties’ separation on 5 January 2012 the police record that when they attended the address they were confronted by the father who “performed martial arts moves and threatened to injure police then threatened to kill”. The police further recorded that they subdued the father, arrested him and took him to the police station. The father gave the following evidence:

   …the night of separation, the following day I was taken into custody by the police and I must – I will admit I was rather resistant to that idea to begin with and they were quite insistent that I come with them.  And I – I went – I basically went into a defensive, sort of, karate position and said, “Don’t come near me”, not having any means of really doing anything about it because there were two burly fully armed policemen.  And so my argument fell on deaf ears obviously, and I was – I submitted immediately afterwards and said, “Okay.  Let’s go.”  I was taken into custody of which allegations of – of striking Ms Twine, which were true – I had hit her that previous evening – were put to me, and I was released some time after.”

   This is an example of the father trying to put as positive a spin on the situation as he can. The mother cross examined him about that insight. She put to him that he karate or judo punched her to the side of the temple and her ear. He denied that. She put to him that he swore at Y. He denied swearing at her but said that Y was pulling him up for yelling at the mother. He said he was yelling “after you insisted on taking the children.” He denied kicking the mother across the face and flinging her back on the bed in front of Y.  He admitted that he ordered her out of the house without the children saying “I was quite keen for that to happen at that stage.” Unsurprisingly X also woke up. The father denied hitting Y.

4. One has to wonder how the father ever thought waking the mother at 2.00 o’clock in the morning would lead to a constructive conversation. His language in his affidavit is also similar to his presentation in the witness box. He admits to some violence but seeks to qualify and minimise it.   His answers in cross-examination were trying to assign some blame to the mother for the events of that night. He shows no insight on how frightening that night must have been for the mother and the children. He was drunk. He was violent. I prefer the mother’s evidence to his. Her evidence was detailed and consistent.

5. He gave evidence that the next morning the children asked him about their mother. He sent them to the neighbour’s home to find her. The children were young.

6. The mother put to the father that about a year after they separated and after the IVO had expired he came to the house uninvited. The mother says he pushed past her. He said he recalled going there to get his stuff. He admitted swearing at her.

7. The father denied being physically abusive to the mother and children during the relationship. The father said that there were “verbal stoushes” where he would often dominate the argument because of his ability to project his voice loudly. He went on to say that since he has done the men’s behavioural change course he recognises yelling can be a form of violence.

1. The mother’s oldest child A lived with the parties until an incident took place in March 2002. The father admits to hitting A on the nose. He says it was supposed to be an act of discipline which he acknowledges was wrong. He says he apologised to the mother and A. Exhibit A is a bundle of documents produced on subpoena by the Department of Health and Human Services (“the Department”). There was a notification made on 29 March 2002 with respect to this incident noting that A had presented with yellow bruising to the bridge of his nose and corner of his eyes. A disclosed that the father punched him in the face and kneed him in the back. A disclosed other incidences of physical discipline by the father.  After this incident A went to live with the paternal grandparents and remained in their care for the next year. The Department records that the mother and father failed to follow through with counselling and that the father had refused to participate in drug and alcohol counselling. There are other reports of concern for A based on physical abuse by the father against the mother and excessive alcohol use by both parents.

2. The father was cross-examined about his interactions with A. A was about seven when the parties started living together. He denies deliberately tripping A. He says A did accidentally trip over his leg when they were playing. The father admitted to hitting A on nose which he said was as an act of discipline he now understands was wrong.

3. The Department records indicate that A returned to live with his mother after the father had moved out. Shortly after A had returned home the parties reconciled. The ICL cross-examined the father about the Department records. He did admit to spanking A he says it was because A had run off and he was concerned about the traffic on the road he said that A had a tendency to run off and was a “temperamental young fellow”. He said it was an act of discipline and was more to curb his spirit and would not have hurt him. He said it was one of the only times he spanked him.

4. The Department records also referred to an incident in late 2001 where records show that A fled the home after an incident of violence between the mother and the father when he was afraid that the father was going to hit his mother with a piece of wood. The police attended, both adults were intoxicated and A stayed at a neighbour’s overnight the Department assessed that further investigation was required given the significant history of domestic violence but then noted that there were no further incidents and reported improvements during the time of the intervention which spanned from 11 September 2001 to 6 December 2001. The father said he recalled an incident where they were both intoxicated and yelling at each other and A did take off but denies any memory of a piece of wood nor any intention of hitting anyone with a piece of wood.

5. The Department file records an earlier incident of A being exposed to violence when the father threw bottles against the wall in 2000. The father said that he can recall throwing some things early in the relationship. He and the mother drinking and smoking cannabis. He then sought to justify his actions by referring to the mother was being “very argumentative person at the best of times” and the aggressor when she had been drinking and was not ready to communicate that he would get frustrated and yell and did pick up something and threw it  against the wall. Again he was eager to say that he has since learnt that that is not the appropriate way dealing with frustration.

6. There were further records from a few months before again indicating excessive drinking and A being exposed to domestic violence in response to that the father said that the mother had seven years practice as a parent where as he had an instant family and that he was having some teething issues.  The evidence including subpoenaed records indicate that there were more than “teething issues”.

7. He says one occasion he gave X a light tap on the bottom. During cross-examination he said that X was about four. He says that he and the mother discussed it and decided that that was not the way they were going to discipline their children.

8. He denied the allegations in the mother’s affidavit that he had kicked X in the back.

9. The mother alleges that the father picked X up by the scruff of his neck and held him above the father’s head while screaming at him. The father denies this and says that on one occasion he held the scruff of X’s shirt frogmarched him to his bedroom after he had been bullying his sister and her friend he thought X was five or six at the time.

10. The father says that the mother would not impose any discipline physical or otherwise and had an alternative method of parenting he said that was a source of much of the conflict in their relationship as he did not want to be seen as the disciplinarian and ogre.

11. The mother also alleged that the father karate kicked X to his face whilst verbally abusing him because he wanted to barrack for a different football team than the father. The father denied this and said there was an incident where he was watching the grand final and (omitted) were playing. She said he was an avid (omitted) supporter and was very upset when the team lost by one point. As that happens, X came into the room and said he was glad that the (omitted) won. The father said he was not in the right frame of mind to hear that and yelled at him to get out of the room. Even on the father’s version this is somewhat concerning that he could not contain his emotions. He denied the mother’s allegations about this incident. She put to him that he karate kicked X and that she and Y were also in the room. He denied that.

12. The father admitted during the cross-examination by the mother that he would come home late, intoxicated and wake her. He denied that he would go into a karate stance and start yelling at the mother. He says it would be a slow burn between them before either of them started yelling.

13. He denied karate punching as Y’s face and denied being responsible for episodes where Y would hyperventilate and cry.

14. He did recall an incident when the mother was breastfeeding X that he was continuing an argument from earlier that day until the mother told him to leave it as she was breastfeeding. He denied attacking her.

15. The mother put several other incidents to the father. I will not recite all of the evidence.

16. The father admitted staying up long into the early hours of the morning drinking. He said he would drink a bottle of wine or spirits but it would be over a 6 or 8 hour period so he would not be “highly inebriated.” He said he would want to talk to the mother and night time when the children were asleep was one of the few times he could get her attention so he would wake her up.  I think the father is downplaying the effect of his drinking both on the family and his own functioning.

17. The father did karate and judo when he was younger as well as (omitted).

18. He otherwise denied the allegations made by the mother.

19. The father was cross-examined about the police records.

20. The police attended the home on 25 June 2010 when the father was heavily intoxicated and verbally aggressive towards the mother. The mother was fearful of the father and wanted to leave with the children, the father would not let her take the children, the father was verbally abusive to the mother throughout the night when the children were present. She hid her keys and waited to leave when he fell asleep. She was afraid that he might be pretending to be asleep so she did not leave. The father woke and became verbally abusive and threw a heavy glass at her cutting her finger. The mother went to the neighbour’s home and called police. The police attended the home which resulted in an intervention order being made against the father. The mother did not give evidence and the father was not charged. The father says he recalls the intervention order but denies throwing a glass and cutting her finger. He denies this stating he was not too drunk to remember. I find it somewhat significant that the police record that the father was not charged because the mother did not give evidence. Often police will record that it was not possible to determine who was responsible or that there were competing versions and they could not determine whether anything occurred.

21. The reports referred to an incident where police were called to the home on 2 October 2010. It records that the father was intoxicated, came home and turned the music up loud which woke the children. This led to an argument and the mother left the home with children the police records that neither was fearful of the other at the time. The father says he cannot recall that incident specifically but that they did readily get into verbal arguments.

22. The police attended the home again on 16 November 2010 for a verbal argument. The father said he recalled police attending on a number of occasions because of the parties being verbally abusive to each other.

23. On 6 November 2011 the police attended the home where the father was intoxicated and verbally abusive towards the mother in the presence of the children. The father says he can recall the incident but that it was not just him being abusive to her it was a two way street.

24. The ICL questioned the father about X’s concerns in relation to the father’s drinking and anger management which she identified to the family consultant in the section 11F memorandum. The father says that he has dealt with his anger management issues through various therapies and completing the men’s behavioural change course. He says he has also done parenting courses. He says he now has a lot more strategies than he did before.

25. He also says that he abstained from drinking alcohol for three months this year but once he started going out with friends more he started drinking again on a social basis. He said to the better part of the last month he has abstained again. I am not satisfied that the father’s drinking is as minimal as he suggests. His drinking has been a long term problematic issue for him.

26. The impression I have is the father admitted these two serious incidents as there are other documents supporting those incidents. Throughout his evidence he was also keen to refer to the counselling he has done and how he has learnt to change his behaviour. In some instances it seemed rehearsed in the sense that the father clearly knows the right things to say but he was still keen to minimise and justify his behaviour where he could.

27. I am not satisfied that the instances of physical violence were limited to the ones where there is documentary evidence which the father could not credibly refute.

28. The father is due to return to the local court with respect to breach of an intervention order. The father sent a couple of text messages to the mother. One was to inform her that his best friend had died. The other was to send a happy birthday message to his daughter and Merry Christmas to the children hoping that the issues could be resolved. The father says that instead the mother took out an intervention order. At the time the father was subject to an undertaking he had given. He says there was an exception with respect to text with regards to the children and regards mediation. He said that the attempt with respect to his friend probably was in breach but will argue with respect to the other texts. Given that that issue is currently before another court I will not comment further.

29. The father was previously seeing Ms K for counselling.  He now sees Ms S psychologist and plans to continue to see her. He says whilst he was resistant to therapy several years ago now he has embraced it wholeheartedly and feels that he has benefited from it and changed.

The mother’s evidence

1. The mother prepared a further affidavit which she filed on 1 August 2016. In that affidavit she lists incidents of family violence which she alleges the father perpetrated against her and the children over a period of years. In addition to physical and emotional abuse, she recounts financial insecurity and controlling behaviour. In her final paragraph she says “He is a liar and a psychopath, bordering on psychotic. I fear for my children’s and my life. I do not trust him and will never do so again.”

2. The mother had x-rays done on 29 April 2016 to support her contention that in or around the same year that the father hit A in the face, there was an incident where the mother says the father stomped on her chest with his foot as she was lying on her back. She rolled onto her front. He grabbed her left arm and placed his foot on her back. The x-ray report states that the left ninth rib had previously been fractured and healed and there was no dedicated review was likely that there were other fractures.  The father denied that it took place at all. The x-ray report is only proof that the mother’s ribs were broken at some point. The report does not indicate how all those fractures occurred.

3. During the mother’s cross-examination she said that she does not agree with the family report (referring to the 2013 report) and the s11F report and said that the authors were “either incompetent or they’re liars as far as I’m concerned.”

4. Mr Burns asked the mother if she has some expertise in psychology. She answered “I do as being my children’s mother and I know my children. They don’t lie. There’s no need to lie to me.” She absolutely rejected the description of the children’s interaction with their father. She said she thought it was unfair that the children went in without an observer. Of course that is what the expert was doing. What is most concerning about the mother’s evidence in this regard is that she cannot countenance that the children might react in a way that she does not expect.  It is not a case of the children lying. Given the strengths of the mother’s views and her rigidity the children would be hyper aware of the mother’s feelings about the father and in that environment is it highly doubtful that they would feel able to freely express their feelings of curiosity about their father or any other feelings about their father that do not accord with the mother’s own feelings and views.

5. The mother clearly stated in cross-examination that she will not comply with an order that requires her to bring the children to see the family report writer because she will not allow them to see the father. She also said again that the “the other people lie about them” (referring to the experts).

6. There was this exchange:[1]

   [1] Pages 67 and 68 of the transcript of the proceedings.

   MR BURNS:   …

   Ms Twine, why have you disobeyed court orders - - - ?---Because I’m afraid - - -      

   - - - on - - - ?--- - - - for my children’s safety and my own.

   Now, is it fair to say that you believe that the court hasn’t got your children’s interests at heart and their safety at heart?---I would think that there needs to be less money making and more holistic approach towards domestic violence perpetration, because as soon as it gets into the courts and that and the – whatever, the finances are divvied out, then it’s a sort of, like, make money situation.  And the – as far as I’m concerned, I’ve been told from the beginning that I would not be able to get sole custody of my children, even if it – there was violence involved.  So I’ve been pushed and pushed and pushed through this whole matter.

   But you did consent, did you not, to final orders in 2014?---I consented, because I was afraid.

   So what you’re telling – no, I will rephrase that.  That’s not really fair.  Would it be fair to say then that when you signed those consent orders, you really had no intention of complying with them?---No.  I thought possibly there might be a chance, but as soon as I spoke with Mr Healy, I just realised that he’s not going to change.  He’s exactly the same person as before, and I - - -   

   So you - - - ?--- - - - started feeling – I started feeling afraid and sick for myself and my children.  And I couldn’t believe what I had done.  I had betrayed my children.

   So you never really gave those orders a chance to work, did you?--- No, I can’t do that.  I’m sorry.  I don’t trust him.  He’s a violent person.

   So if the court, that is, her Honour, should order you to attend the family report writer with the children, as you – are you suggesting that you would not comply with that order?---I can’t see the point, because I’m not going to make my children available to Mr Healy.  He’s a liar and he’s violent.

   Can you just answer the question, please?---No.  I’m not going to – I’m not going to put them in a position where they might be confronted by him and maybe sort of like because he is their father, he – anyway, I’m not going to explain that.  No, I’m not going to.

   HER HONOUR:   Well, you’ve got to answer the questions that you’re asked?---Okay.

   Because it’s going to be a relevant factor.  I’ve got to decide what’s in the best interests of the children?---Okay.  Well, ask - - -      

   And it’s difficult when your children aren’t presented for expert assessments.  That’s one of the issues?---I mean, it’s different they lie – the other people keep lying about them.  Sorry.  Could you repeat the question.

   MR BURNS:   Not in exact words, but I was putting to you that if her Honour orders that you attend the family report writer, to permit that writer to complete a report for the court, and attend with the children, you will not comply, will you?---I’m not sure at the moment.  I can’t comment on that right at this point in time.

   So you’re suggesting that you might well go and see the report writer?---I would be not willing to, but I guess I would have to access it between now and then.  But I don’t – I wouldn’t – I’m not – I’m not in a position where I’m going to put my position in danger.  And I don’t really care whether somebody else who has nothing to do with my relationship with Mr Healy, has nothing to do – had nothing to do with it and is going to have nothing to do with it in the future has got the right to tell me what to do in my life.

   What about your children?  Do you think  - - - ?---I think      

   - - - the court has some rights - - -?--- No.

   - - - to tell the children?  No?---Tell the children what?

   That it might be in their – that there is a way that they can see their father?---They don’t want to see their father.

   You’ve discussed this with them?---I just – it was – it was brought to my – to my – as soon as we had broken up, the children both said to me, “We don’t want to see him anymore.”

   So you explained to them, did you, that it’s in their interests, perhaps, in the long term they have a relationship with their father?---No, not when there’s violence involved and the possibility of myself or them being killed.  No.  I don’t.

   You have – you do not accept at all then that the experience of, I would suggest, the court and all the professionals that work in this field that it can be detrimental to a child that doesn’t have a meaningful relationship with both parents?--- Not if that meaning involves violence and more - - -      

   So - - - ?--- - - - trauma, more impact on trauma, when that person is actually lying about his violence towards myself and the children, and then you expose them back to that person?  His their father.  It’s even worse than someone you don’t even know, a stranger, attacking us in our own home.  You tell me about the trauma impact that could have.

7. The mother was candid when giving her evidence. She feels very strongly. There is nothing the father can do to assure the mother he has changed. She is very clear that he is lying about the violence and no amount of courses will convince her she and her children are safe.

8. The mother says she spends three hours a day home schooling the children. She says that is the compulsory part but that they are always learning. She says she assesses their education standards. She says there is no external assessment. The mother completed year 11 of high school. She says she can access anything she needs to teach them on the internet, including year 12. It is not an issue of the mother lacking intelligence. Clearly she is but that does not mean that she has the qualifications to give the children a standard of education that will give the children options to pursue university education for example if that is what they choose. The mother says that the Education Department does not conduct any checks.  She also says there are six core subjects she must cover but there is no curriculum. That is of concern. If it is the case then that is very lax of the department. I am going to direct that the ICL issue a subpoena to the Department of Education with respect to the children’s home schooling. The mother takes the children to a home schooling group every fortnight which provides social interaction.

1. At several points during her evidence the mother was highly defensive. When questioned about her refusal to comply with orders she said she took the children 3 out of 4 times she was required to for appointments. She included the ICL. She then said she thought the reports were biased. She included Ms S even though she refused to attend and only spoke to her by telephone. She then said it was irrelevant to her. “They will have not have anything to do with my life, and it won’t matter what happens to myself or my children, ultimately, in the end.”[2]  

   [2] Transcript page 77.

2. The mother queried the family consultant’s recordings of the interactions between the father and the children as there was no photographic evidence, no video evidence and no other observer. I have the impression that the mother will not accept any view including those of experts and the Court if it does not accord with her own.

3. The experts do not come into this with a particular agenda. The mother in entitled to cross-examine and test their evidence but there is nothing at all to suggest that there is any basis at all for the mother’s complaints that they are liars, incompetent or biased. The mother will have the opportunity to test the evidence of Ms S and Ms L at the further hearing.

4. My impression is that the mother either does not understand the role of the experts or has disregard for any authority.

Ms S

1. Ms S is the father’s current psychologist. Her notes were tendered as exhibit C. Her notes indicate a focus on the father’s car accident, grief he has suffered from family losses and his alcohol use. I am not left with the impression from reading those notes that there has been much discussion about family violence.

2. She swore an affidavit and was cross-examined. The father only talked about his drinking over the past 5 years. He spoke about the parties’ separation. He told her that he was concerned about children. There was some pushing and shoving. The father did admit he had been drinking and hit the mother. He said he regretted it.

3. The father did not disclose his earlier history to her including the DHHS involvement and hitting A when he was 7 years old. The father told her about the car accident. She thought that occurred around the time of separation. The father has focused on things that have happened after separation.

4. Ms S said that the father told her he drank steadily for a couple of years. He did not talk about volume. She says she did not ask him for his history of drinking because he told her at the second session that he stopped drinking and that was not why he came to see her. His goal was to become a good father and a better person.

5. She was surprised about there being other police interventions apart from the incident at separation. He has not disclosed the nature of the allegations against him in these proceedings. She was not aware of the allegations about serious family violence. The father did not disclose the work he had done with his previous counsellor.

6. Ms S made the point that she works on the goals her clients’ identity. This is perfectly proper. What is clear however is that the father has not been candid with her about his violence and his drinking.

7. The first question the mother asked Ms S is whether she was biased against home schooling. That was not a relevant question for Ms S.

8. The mother then asked Ms S if she was experienced enough to assess someone as psychotic and violent. Of course that is not what she was engaged to do. Only a psychiatrist can diagnose psychotic illness. The mother is not qualified and there is no evidence to suggest that the father has a psychotic or any other psychiatric illness. Many people are violent without being ill.

9. Ms S made clear that what she recorded in her report was based on her the father’s self-reporting. The father told her that he misses the children and cares about the mother. He told Ms S that he was worried about the mother and was sorry that the court process is upsetting her.

Legal Principles

1. The Family Law Act was amended in 2012 to greatly expand the definition of family violence and abuse. The definition came into effect on 7 June 2012. Section 4AB states:

   (1)  For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

   (2)  Examples of behaviour that may constitute family violence include (but are not limited to):

   (a)  an assault; or

   (b)  a sexual assault or other sexually abusive behaviour; or

   (c)  stalking; or

   (d)  repeated derogatory taunts; or

   (e)  intentionally damaging or destroying property; or

   (f)  intentionally causing death or injury to an animal; or

   (g)  unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)  unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

   (3)  For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4)  Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a)  overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

   (b)  seeing or hearing an assault of a member of the child's family by another member of the child's family; or

   (c)  comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

   (d)  cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

   (e)  being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

   [emphasis removed]

2. The definition gives examples of behaviour that may constitute family violence.  It’s not exhaustive, but includes behaviour such as derogatory taunts, intentionally damaging or destroying property and stalking.  It also importantly refers to children being exposed to family violence as being when a child sees or hears family violence or otherwise experiences the effects of family violence.

3. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.

4. The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.

5. In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.

6. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. I am satisfied that the mother and the children have been subjected to significant family violence. Section s.60CC(2)(b) takes precedence here. However it does not mean that is it automatically not in the best interests for the children to have a relationship with their father. These children are heading towards their teenage years. As they become older they become curious about that identity. They have an awareness that they have come from both their mother and their father. The children’s current views are not known. This will be explored by Ms S.

8. In light of my findings about family violence, the presumption that it is in the best interests of the children that their parents have equal shared parental responsibility is rebutted.  Furthermore, I have no confidence that these parties have any capacity to communicate effectively. The final consent Orders awarded the parents equal shared parental responsibility. The mother seeks sole parental responsibility. This is one of the issues which will need to be determined.

9. The issue of the parents’ capacity to provide for the children’s emotional, intellectual and psychological needs is also a relevant mater.  One issue the Court is asked to determine is whether or not the children’s educational needs are being met. The mother impresses as having the view that anyone questioning home schooling is biased. That is not the case. Home schooling can be a positive learning environment for children but this is not always the case. The apparent lack of any oversight is concerning.

10. Another important aspect of this consideration is the impact on the mother if the children are to have any sort of relationship with the father and the impact that this in turn would have on the children.

Submissions

1. The ICL submitted that little weight could be given to Ms S’s evidence because of the lack of history the father gave her.

2. The father’s accident took place in 2006. It could be that the father does not remember incidents of violence after that. The mother was consistent in her material and her evidence.

3. The ICL submitted that the mother should comply with Court orders and should bring the children to Court to attend a family report interview. Irrespective of the family violence on two occasions the children have expressed a desire to see their father. An issue of concern expressed by the ICL is the impact on the children long term if they are denied a relationship with the father. This is a relevant consideration for the family report writer.

4. The father’s counsel supported the ICL’s submissions. The mother has never presented for any form of therapy. The father has. The children are older now. There needs to be an assessment of the mother and the children.  He suggested that there may be a psychiatric or other condition present contributing to the mother’s presentation and attitude.

5. The mother submitted that the father’s continuing denials shows her that the father has not accepted responsibility for his actions. She said she was at a loss for words as to how she has to continue to be exposed to the father. She then said that if she has a lot of money she would not be here. It is not about money. The mother takes no responsibility for having agreed to and then breached Court orders repeatedly. 

Conclusion and Future directions

1. I am satisfied that the family violence was much more extensive than the father is willing to admit and that the children were exposed to the violence. It was not isolated. I am also satisfied that the father’s drinking was more problematic than he admits. It may be that because the father’s memory has been affected by the accident and because of his drinking that he does not remember some of the incidents of violence. That does not lessen his culpability. He impressed as being keen to present himself in a positive light. His expressions of remorse seemed superficial as he remained keen to blame the mother.

2. The anger the mother has towards the father is understandable in light of the family violence she and the children have experienced and the father’s ongoing minimisation of this.

3. The mother has a sense of entitlement and rights with respect to the children. She is a single mother home schooling the children and has not sought any professional assistance for any of them.

4. The mother cannot countenance that the children may suffer emotionally from being denied a relationship with their father because she cannot see anything redeeming about the father and cannot see that there is any way that would make she and the children safe if the father is to see the children, even in a professionally supervised environment. She believes that the father intends to take the children away from her.

5. I accept the mother is genuine in her views. I accept that she finds the idea of having to deal with the father again traumatic. I have some concerns about the rigidity of her views and the opposition to any sort of authority.  It heightens the concerns about the children’ emotional and psychological welfare in her care. That does not mean that the father is a viable alternative.

6. The mother may see this as an attack on her. It is not. The mother was highly defensive when being asked about the children’s education. In a reoccurring theme she said schools are all about making money. This Court is obliged to make orders which are in the best interests of the children.  This involves multi-faceted considerations.

7. The mother assured the Court that she will comply with the order. The Court expects the mother to comply. She and children attend Ms S so that the family report can be completed. That appointment is scheduled for 18 January 2017.  After the release of the family report the matter will come back before me for directions.

I certify that the preceding one hundred and nine (109) are a true copy of the reasons for judgment of Judge Harland

Date: 6 October 2016